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Lassoff v. Microsoft. Motion to File Third Amended Complaint

Lassoff v. Microsoft. Motion to File Third Amended Complaint

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Published by: Siouxsie Law on Apr 13, 2010
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01/20/2011

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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF PENNSYLVANIAALEX SCHWARTZ, on behalf of )himself, and other U.S. residents similarly situated, )
 
) CIVIL ACTIONPlaintiffs, ))v. ) 10-CV-215
 
)MICROSOFT CORPORATION ))
 
Defendant. )AMENDED MOTION FOR LEAVE TO AMENDPLAINTIFFS’ SECOND AMENDED CLASS ACTION COMPLAINT
1. Plaintiffs filed a lawsuit against Defendant Microsoft Corporation on January 19, 2010,for reasons explained in Plaintiffs Third Amended Complaint attached hereto.2. Plaintiffs have stated that Defendant Microsoft’s alleged forum selection clause isunenforceable and invalid for several reasons and will respond to same after the attachedThird Amended Complaint (and Defendant’s Motion to dismiss same) is/are properlyfiled in the Eastern District of Pennsylvania. A brief discussion of this issue is addressedin Plaintiffs Memorandum of Law In Support of Plaintiffs Amended Motion For LeaveTo Amend Plaintiffs’ Second Amended Complaint. [See e.g. Plaintiffs Memorandum of Law in Support of Plaintiffs Amended Motion For Leave To Amend Plaintiffs’ SecondAmended Class Action Complaint attached hereto].3. Plaintiffs Motion For Leave is made in good faith and is not designed to delay proceedings. Plaintiffs Third Amended Complaint is not subject to dismissal or transfer as the alleged forum selection clause is invalid and unenforceable due to Microsoft’sfraud, Microsoft’s monopoly over Xbox digital goods/services/content, recent disclosures by Microsoft’s counsel regarding “hidden transaction costs” and the U.S. cash value of Microsoft Points, and the overall mandatory & proprietary use of the Microsoft Pointssystem to purchase X-box Live, Xbox Live Marketplace, Windows LIVE, Xbox 360, andZune digital goods and services.4. On March 18, 2010, the parties appeared before the Court for a pretrial conference.Thereafter, the parties failed to reach a stipulation agreement and Plaintiffs filed their Motion for Leave on March 25, 2010. On March 30, 2010, Defendants filed a responseto Plaintiffs Motion for leave and pointed out that Plaintiffs “failed to submit a brief insupport” of their motion. [See Dkt. No. 13, page 5, line 1] On or about March 31, 2010,Plaintiffs filed this Amended Motion For leave to include a Memorandum in Support of their Motion For Leave To File their Third Amended Complaint.5. Plaintiffs seek to obtain leave of Court to allow them to file a Third Amended ClassAction Complaint attached hereto.6. As a general proposition of law, leave to amend a pleading should be liberally grantedunless a compelling reason such as prejudice to an opposing party exists. See e.g. Fomanv. Davis, 371 U.S. 178, 182 (1962).
Case 2:10-cv-00215-WY Document 14 Filed 03/31/10 Page 1 of 3
 
 7. Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure: “A party may amend the party’s pleading once as a matter of course at any time before a responsive pleading isserved.” Because the Plaintiffs seek to amend their complaint after the Defendant servedtheir responsive pleading, the Plaintiff “may amend [their complaint] only by leave of court.” See Fed. R. Civ. P. 15(a). Rule 15(a) clearly states that, “leave shall be freelygiven when justice so requires.” See Id. “Among the grounds that could justify a denialof leave to amend are undue delay, bad faith, dilatory motive, prejudice, and futility.” SeeIn re Burlington Coat Factory Secs. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997) (citationsomitted); see also Lorenz v. CSX Corp., 1 F.3d 1406, 1413 (3d Cir. 1993). The ThirdCircuit has found that “prejudice to the non-moving party is the touchstone for denial of an amendment.” See Id. at 1414.8. In this case, there are no reasons to deny Plaintiffs Motion for Leave to Amend theSecond Amended Class Action Complaint. There has been no undue delay in amendingthe Second Amended Complaint. The Defendant has not filed an Answer. Although the parties met for a Preliminary Pretrial Conference Meeting on March 18, 2010, this Courthas not yet entered a Class Certification Schedule. The parties have not engaged in anyDiscovery and therefore amending the Second Amended Complaint will not require theDefendants to re-file an Answer, will not affect the Case Management Report or theScheduling Order, and will not affect Discovery as no Discovery has occurred. Plaintiffshave diligently prosecuted this case and there have been no failures to cure any allegeddeficiencies. In short, there is no reason to deny Plaintiff’s Request for Leave to Amendtheir Second Amended Complaint.9. If the Court grants Plaintiffs motion for leave to file a Third Amended Complaint,Defendant Microsoft Corporation’s Motion to Dismiss is rendered moot.10. Plaintiffs, who acted in good faith and fair dealing, were unable to reach a Stipulationagreement with Defendant Microsoft Corporation in this regard. Furthermore, inaccordance with Local Rule, the undersigned counsel has attempted to confer withopposing counsel in an additional good faith effort to resolve the issues raised by thisMotion. The most recent discussion with opposing counsel occurred on March 23, 2010,at which time the undersigned was advised that Defendant Microsoft Corporationvehemently opposed same.WHEREFORE, Plaintiffs respectfully request this Honorable Court grant leave of court tofile their Third Amended Class Action Complaint.
1
 DATED: March 31, 2010By:
Samuel J. Lassoff /s
 PO Box 2142Horsham, PA 19044Attorney for Class Action Plaintiffs
1
In the event an alternative Order is issued by the Court, Plaintiffs hereby request an additional20 days to respond to Defendant Microsoft Corporation’s Motion To Dismiss Plaintiff’s SecondAmended Complaint.
Case 2:10-cv-00215-WY Document 14 Filed 03/31/10 Page 2 of 3
 
CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT ON MARCH 31, 2010, I FILED THE FOREGOING
AMENDED MOTION FOR LEAVE TO AMEND PLAINTIFFS’ SECOND AMENDEDCLASS ACTION COMPLAINT
USING THE COURT’S CM/ECF SYSTEM, WHICH WILLSEND E-MAIL NOTIFICATION OF THE FILING TO DEFENDANT’S COUNSEL. THISDOCUMENT IS AVAILABLE FOR VIEWING AND DOWNLOADING VIA THE CM/ECFSYSTEM.Samuel J. Lassoff /s
 
Case 2:10-cv-00215-WY Document 14 Filed 03/31/10 Page 3 of 3

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